The Sovereignty of the Order of Malta

Under construction.

The sovereignty of the order of Malta is a controversial topic in international law.
Many prominent treatises reject it, or take a neutral position. It is hard to find
any textbook or treatise that affirms it. In the specialized literature,
there are a number of articles supporting the order's sovereignty in international
law, others supporting its existence as a subject of international law without
necessarily being sovereign, and still others that reject its status as subject
of international law.

I intend to visit this issue, as a side note to the question of legitimacy of orders.
When one of the most legitimate order asserts a doubtful sovereignty, it only makes
it harder to distinguish legitimate and illegitimate orders.

Basic Concepts

International law is a particular area of law. Medieval jurists called it
"jus gentium", which is how Romans named the law governing relations between
Roman citizens and others (as opposed to "jus civile" which governed relations
among citizens). International law governs legal relations (rights and duties)
across borders, as opposed to municipal law. Private international law concerns
relations between private individuals, while public international law concerns
relations that governments have with individuals and with other governments
(such as treaties, laws of war, maritime law, human rights, etc).

International law is a difficult subject because of its history, its many sources,
and the absence of an ultimate arbiter or enforcer. International law arose from
medieval "jus gentium", but has evolved considerably over time: thus, the history of a given entity, such as
the Order of Malta, can span many centuries and many changes in international law.
The sources of international law are treaties, customs, and opinions expressed by
judges and jurists: it is difficult to maintain coherence between such diverse
sources. Finally, although there are international courts (such as the
International Court of Justice
founded in 1945, the European Court of Human
Rights founded in 1950, etc), there is no court that has a final word and
can impose its decisions and make them binding on all.

The aspect of public international law that is relevant here is the question:
Who is a subject of international law? A subject of law is an entity
(a physical person, a group of persons, a corporation or organization) that
has rights and obligations under international law (as opposed to municipal
law). A subject of international law can, in principle, enforce its rights
or pursue its claims in international courts; it can bind itself with
respect to other subjects by entering into agreements; other subjects can
hold it to its obligations.

The answer to the question used to be fairly simple: sovereign states were
the only subjects of international law. A sovereign state was defined as
a specific territory, with a stable population and an organized form of
government, that was free to rule itself, and had no constraints or obligations
other than those it accepted willingly. This 19th century view of things
has long been confronted with exceptions, special cases, grey areas. After
1945, international law has evolved further and accepted that there are
other subjects of international law, besides states.

To be completed.

The Literature in International Law on the sovereignty of the SMOM

An apologist for the order's sovereignty, Berthold Waldstein-Wartenberg,
writes (Rechtsgeschichte des Malteserordens, Wien: 1969, Verlag
Herold; p. 264) that the sovereignty of the order
and its personality in international law is "generally recognized
by international law doctrine".

This is a rather excessive statement. The following anthology of opinions
on the subject is taken mostly from general textbooks on international law,
and show that, at the very least, there is a broad range of opinions.

Georg Dahm (Völkerrecht; 1:182) thinks the Order is
a "Völkerrechtsubjekt ohne Gebiet".

Paul Guggenheim (Traité de Droit International Public.
Geneva: 1954; p. 339n): "Contrary to a commonly defended
opinion, these orders do not have in general international law any legal status
other than 'charitable societies'."

Alexander Hold-Ferneck (Lehrbuch des Völkerrechts; Leipzig: 1930;
1:246) says that the order's international status is "merely an outward
form, which has been preserved for a variety of reasons, not an actual
personality".

Wilhlem Wengler (Völkerrecht; Berlin: 1964; 165-6) rejects
the notion that recognition of the Order by some states can make it a subject
of international law.

Dominique Larger and Marcel Monin ("A propos du protocole d'accord...,"
Annuaire Français de Droit International, 1983:228-40) conclude
that "the thesis of the international personality of the Order seems
to us to rest on too tenuous evidence to be accepted."

Roberto Quadri ("Droit International Public," Recueil des
Cours de l'Académie de Droit International, 1964; vol. 113,
p. 422) states: "it seems obvious to us that one must reject the international
personality of the Order."

Debez (1964; p. 129): "we must, along with the majority of the
doctrine, refuse [the Order] the status of subject of international law."

James Crawford (Creation of States in International Law. Oxford: 1979,
Oxford University Press. p. 29) says that its international personality
is recognized by particular states, but is not an objective international
personality like the United Nations.

Gerhard von Glahn (Law among nations: an introduction
to public international law, 1986, 5th ed; p. 67): "the Order
can be
classified as a nonstate subject of international law, although of a somewhat
peculiar nature."

D.P. O'Connell (International Law. 1965; p.94) does not take a
clear stand on the status of the Order, but says: "for the creation
of personality in communities international law lays down conditions of
territory, population and constitutional competence; for the creation of
it in international organisations it requires an organisational goal common
to the bulk of states, and machinery for the realization of that goal that
cannot operate without capacity to act internationally."

Ian Brownlie (Principles of Public International Law, 5th ed.,
1998, p. 64): "Even in the sphere of recognition and bilateral relations,
the legal capacities of institutions like the Sovereign Order of Jerusalem
and Malta must be limited simply because they lack the territorial and
demographic characteristics of states. In the law of war the status of
the Order mentioned is merely that of a 'relief society' within the
meaning of the Prisoner of War Convention, 1949, article 125."

Helmut Steinberger (Sovereignty, in R. Bernhardt, ed.,
Encyclopaedia of Public International Law, 2000, North-Holland
Elsevier; vol. 4, p. 512): " With the historical exception of the
Holy See, which maintains diplomatic relations with more than 100 States, in
contemporary international law only States as distinguished from international
organizations or other subjects of international law are accorded
sovereignty."

Misc.

The French Republic does not recognize the SMOM as a subject of international
law; see
a statement by the spokesman of the French Ministry of Foreign Affairs,
Feb 7, 1997.